Section 8.04.050 of the Palo Alto Municipal Code defines Public nuisances. In particular item (a)(8) of this section states that shrubs and plants more than two feet in height in a city street planting strip is such a nuisance. Section 9.56.010 (a)(1) of the Palo Alto Municipal Code defines abatement. "Abate" means to repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such manner and to such an extent as the enforcement officer in his judgment determines is necessary in the interest of the general health, safety and welfare of the community.

Many, perhaps hundreds, of Palo Altans have landscaped planting strips adjacent to their property to screen themselves from neighbors or traffic or just to express their individual tastes. The public nuisance ordinance has historically been enforced to ensure safety for vehicle, pedestrians, and bicyclists but fortunately for the diversity and charm of Palo Alto, enforcement officers have used their judgment, as allowed by the code, to avoid blind adherence to the unreasonable 2-foot planting height limit. Many Palo Alto citizens are surprised to learn that such a restrictive ordinance exists. As of February 11, 2002, four Palo City Council Members, including the mayor, were in violation of the ordinance. And no, their planting strips did not compromise public safety.

It seems that 385 El Dorado Avenue (on the corner of Waverley Street) has been singled out for strict enforcement on the basis of a complaint which was published in the Palo Alto Weekly. Normally, according to Lisa Grote, Chief Planning Official in charge of Code Enforcement, code is enforced on a complaint-only basis. Code Enforcement Officer Chris Fujimoto and his supervisor Lisa Grote both concur that in this case, in which a residents' association is involved, that the officer cannot use his judgment as allowed in Section 9.56.010 (a)(1) and cannot "change or ignore" the standard specified in 50-year-old Section 8.04.050.

In fact, a complaint-based enforcement policy is merely expedient. Code enforcement officers cannot help but notice the many planting strip violations as they travel through town. They routinely ignore them.

Substantial pruning has been done at the corner of Waverley and El Dorado to address safety concerns. The stop sign at the corner is not and never has been obscured. Any driver stopped at the sign has visibility of approaching traffic for at least a block in each direction. If safety is not the issue here, what will strict selective enforcement accomplish? Satisfy the public complainer and neutralize a political liability? Prove that Palo Alto does not "just say no" to enforcing the municipal code? Make an example of this case to demonstrate that nobody can fight city hall and win? Show the crusty old lady on the corner who is boss? Collect a $500 fine and improve the Planning Department's bottom line?

The point is that none of the above potential accomplishments justify abandoning the exercise of common sense and fairness.

Please read on for context and details of the complaint and Palo Alto officials' responses.

You will need Adobe Acrobat Reader to view some of these documents. It is available as a free download. You may also request a paper copy of a document from Kay Leibrand

A comparison between Palo Alto's mission statement and the actions of city officials in this case is interesting.

Palo Alto Weekly Guest Opinion - Tom Ashton

(October 17, 2001)

A synopsis doesn't do it justice. A quote:

"... the city-owned median strip is completely planted with 10-foot high bushes for the entire width of the lot."

The Palo Alto Weekly policy is "Reproduction or online links to anything other than the home page without permission is strictly prohibited." so to see the opinion piece, use the search capabilty to search for October 17, 2001 Guest Opinion under Spectrum

Photo of Violation - Christopher Fujimoto

(October 26, 2001)

Can anyone see 10-foot tall bushes in the planting strip here?

Notification of Violation - Christopher Fujimoto

(October 30, 2001)

Describes the violation. Threatens a $500 fine. Does not mention the right to a hearing as called for in Section 9.56.040.

Letter to Lisa Grote - Kay Leibrand

(November 28, 2001)

Details phone conversations with Enforcement Officer Fujimoto and asks Ms. Grote "to consider both safety and fairness in this situation." Another quote: "It is particularly galling that [the officer] seems to be handling this case in a special way because of political pressure."

Response from Lisa Grote - Lisa Grote

(December 10, 2001)

A polite but rather bland recitation of policy and a statement that the case was being handled fairly because it was being handled in accordance with policy. And of course a denial that any political pressure was involved.

Reply to Lisa Grote - Kay Leibrand

(December 13, 2001)

Includes a detailed description of efforts to meet the safety concerns cited in the original complaint. A quote: "I wrote to you hoping for common sense. I got generalities. I hope you will answer my questions directly and prove my husband wrong. He says I am wasting my time trying to talk with bureaucrats."

Response from Lisa Grote - Lance Bayer

(February 7, 2002)

Lisa Grote's response to the December 13 letter was to delegate the case to Lance Bayer, Special Legal Counsel (read consultant). Lance Bayer left a phone message to call him "next week."

Reply to Lance Bayer - Kay Leibrand

(February 12, 2002)

A quote: "I called your cell phone number this morning and left my number. I plan to be home today until late afternoon so that you can return my call. If you can also offer me the courtesy of answering some of my questions by e-mail, that would reduce the time for note-taking during a phone call."

Reponse from Lance Bayer - Palo Alto Police

(April 3, 2002)

Apparently Lance Bayer decided to ignore the Palo Alto procedure for hearing code violations that is called for in Sections 9.56.040 and 9.56.060 of the Municipal Code. He did not return the February 12 phone call. Neither did he answer the e-mail.

Instead, two Palo Alto police officers were dispatched to arrest Kay Leibrand at her home for the misdemeanor of violating Municipal Code 9.56.030. Pursuant to Section 853.6 of the Penal Code, she was required to provide a thumbprint and was released after signing a promise to appear in Superior Court on May 30.

Public Response - Palo Alto City Attorney

(April 5, 2002)

Ariel Calonne's attitude to the arrest can be found in an unexpected place. See message 3 in this NeighborSpace discussion. It shows his pride in his Visibility Project and in the arrest of a citizen. Safety was not mentioned. Does anyone also see a bit of arrogance in his assumption that the City Council would be approving the hiring of Lance Bayer?

Letter to City Manager - Kay Leibrand

(April 5, 2002)

A summary of the case and a request for an opinion from the City Manager after the misdemeanor arrest. A quote: "Yes, I know it's policy, but do you think it's sensible and fair? If you are unable or unwilling to comment on this, please at least acknowledge that you received this letter."

Response from City Manager - Lance Bayer

(April 10, 2002)

The City Manager did not acknowledge the letter but instead apparently delegated his response to Lance Bayer who issued a press release!

A quote: "The charges were filed after appeals from neighbors and orders from City code enforcement staff failed." No appeals from neighbors were made directly to Kay or Roger Leibrand. City code enforcement staff failed to answer questions concerning their "orders".

Of course, a case is public once a criminal complaint is filed. But issuing a press release all but ensures that the case is tried in the press and in the media. Perhaps this is Lance Bayer's way of publicizing a safety program but it looks a lot like intimidation.

Media Reaction

(April 11, 2002 through March 11, 2003 and continuing...)

See a partial compilation of intensive newspaper, radio, TV, and web coverage.

Booking

(April 17, 2002)

As ordered, the defendant went to the Palo Alto Police Station to be photographed and fingerprinted.

Arraignment

(May 29, 2002)

The defendant appeared in Santa Clara County Superior Court to plead not guilty.

Pretrial Conference

(June 28, 2002)

The defendant again appeared in Superior Court. The pretrial conference was continued to August 9 and the judge encouraged both parties to meet before then to resolve differences out of court.

Meeting with City

(July 12, 2002)

The defendant and her attorney met with Lance Bayer and the Palo Alto Planning Director in a city conference room. The defendant's attorney argued that criminal charges were not warranted in this case and made some suggestions for compromise. Lance Bayer explained at length that his actions had been legal. The Planning Director suggested that full compliance might be more acceptable if a city expert offered relandscaping advice. No agreement was reached but the defendant's attorney encouraged further contact before August 9.

Pretrial Conference continued

(August 9, 2002)

Pretrial conference was continued because of schedule conflicts.

Pretrial Conference continued

(August 23, 2002)

Pretrial conference was continued again.

Pretrial Conference continued

(September 6, 2002)

The defendant again appeared in Santa Clara County Superior Court.

The date for a jury trial was set to February 10, 2003.

Day in Court

(February 10, 2003)

The defendant appeared in Santa Clara County Superior Court, accompanied by family and friends.

Criminal proceedings were suspended for six months while the defendant complies with the terms of a settlement.

See Epilogue below.

See 18 photos of plants in city-owned planting strips which are over two feet tall. These can all be seen on (or from) the 4-block section of Waverley Street between Oregon Expressway and Loma Verde Avenue. One of these eighteen is at 385 El Dorado Avenue and has been singled out to be pruned to a height of two feet. Is such selective code enforcement fair? It's policy but is it legal??

These photos are in no way intended to constitute complaints about landscaping in city-owned planting strips and are in no way intended to imply that any of the 18 examples constitute safety hazards.

A yardstick has been placed vertically in the foreground of each photo to establish scale.

If there are this many "overly tall" plants in four blocks of South Palo Alto, think of the numbers of such plants in North Palo Alto which is blessed with many more planting strips. It is time to admit that some elements of the Palo Alto Muncipal Code do not reflect reality and do not even serve their purpose of ensuring safety.

Some people are not impressed by the examples above. They are interested only in vegetation at intersections, even though National Center for Injury Prevention and Control statistics show that most children who are injured as pedestrians in traffic-related incidents are injured away from intersections.

There is no shortage of "overly tall" plants at or near intersections in city-owned planting strips.

	Here are 24 photos of such examples.
	And 24 more.

These photos are not intended to constitute complaints about vegetation. They are intended to highlight a problem with

PALO ALTO CODE ENFORCEMENT which is:

usually complacency -> complacency -> complacency -> complacency -> ...

and rarely complacency -> complaint -> compliance (no matter what it costs to whom)

Did anyone notice that common sense, consistency, courtesy, concern, communication, cooperation, compromise, and compassion are missing in Palo Alto code enforcement? Does anyone care about collateral damage or cost? Or justice?

The real traffic safety problems are stop sign violations, unsafe speed and inappropriate neighborhood traffic patterns. Visibility is important but plants are easy targets. Most children are injured as pedestrians in traffic by running into the street midblock between parked cars but few politicos are willing to try to outlaw parking cars on the street, nor should they.

Most Palo Alto parents are conscientious teachers of safety practices. Most Palo Alto children are quick learners. But why are drivers and cyclists still not stopping at stop signs? Some drive slowly enough through such intersections to think they really did stop. Some give the excuse that they didn't see anyone coming so coasting through the stop sign was OK. Some say, "What stop sign?".

Let's try enforcing existing traffic laws and educating drivers, parents, and children before tilting at windmills. Setting priorities and doing the most important things first are more difficult but much better than just doing the easiest thing and then resting in self-congratulatory satisfaction.
Think about it!

No jury trial, no jail, no fine. A donation has been made to Canopy,Trees for Palo Alto as part of a settlement.

My heartfelt thanks to family, friends (and strangers) who have supported me along my path.

My sincere thanks to my defense attorney Charles J. Smith of Smith, Bentley, and Hartnett for his understanding, expertise, forcefulness, follow-through, and for educating me that what seems right and fair and what is legally defensible are two different things.

Thanks also to Judge Charles J. Cory, Superior Court of California, County of Santa Clara, for his sensitivity and for his efforts to reach a reasonable settlement.

The shrubs vill be cut to 2-foot stubs. Actually we have done that as of Feb 13, 2003. Credit goes to Lance Bayer who dutifully followed the orders of the Palo Alto city administrators to the detriment of fairness and common sense. Apparently any thinking that was done at city hall was directed at "winning" and not at any objective standard of safety.

Some quotes from my Guestbook seem particularly appropriate here.

"... the problem at this intersection is NOT her shrubs. It is the fact that very few drivers come to a complete stop at the stop sign and [many drivers] speed down El Dorado at well above the speed limit. That is a real danger, and would be a worthy use of city enforcement resources. ..."

"... the City engages in selective prosecution of ordinances. By doing so, the City gives much too much power to a small group of people who spend their time watching and complaining about their neighbors. ..."

"... Palo Alto city government has turned against its constituency. We get adversarial confrontations, not common sense and problem solving."

"... The City Government has serious issues that it should address. ..."

It may have been legal but it did not make sense for the city to lodge a criminal complaint against me when less damaging and less costly options were available. It may have been legal but it was wrong for city officials to leave me waiting for answers to my questions and then blindside me with an arrest and a press release.

Paraphasing Edward R. Murrow, "Having the right to do it doesn't mean it is the right thing to do."

I did respond to safety concerns when a complaint was made. What would have made sense would be for the city to acknowledge that the shrubs at the intersection were pruned enough to provide good visibility and to accept the taller shrubs away from the intersection just as the city has done for the last 25 years and just as they do in hundreds of other places in Palo Alto.

I am grieving for the loss of the shrubs which I planted when my first-born was an infant. The healthy green shrubs have been butchered. The quiet enjoyment of my home won't be quiet. The view from my bedroom, my office, and my woodland garden is pavement and passing traffic. The neighbors' view is barren. The many years I have spent contributing to what I thought made the neighborhood attractive have been lost. It will be difficult to prove that the intersection is safer because of this desecration because the shrubs there until now have never caused an accident. Sometimes humor helps healing. I hope so.